SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: A6955/2021
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED : YES/NO
DATE: 19/03/ 2025
SIGNATURE:
In the matter between:
MANKURU PETER LATANE APPLICANT
(Identity Number:6 […])
And
VELOCITY FINANCE(RF)LIMITED RESPONDENT
In re:
VELOCITY FINANCE(RF) LIMITED PLAINTIFF
and
MANKURU PETER LATANE DEFENDANT
(Identity Number:6 […])
HEARD : 25 OCTOBER 2024
DELIVERED : 19 MARCH 2025
CORAM : KL PILLAY AJ
This judgment was handed down electronically by circulation to the parties and/or
parties' representatives by email. The date for hand -down is deemed to be on 19
March 2025.
JUDGEMENT
Pillay AJ
Introduction:
[1] This is an opposed application wherein the applicant seeks the following
orders;
[1.1] Default judgement granted by the registrar of the court on 20
December 2021, be rescinded.
[1.2] Cost in case of opposition
[1.3] further and or alternative relief.
[2] The rescission of judgement is being sought, either in terms of Rule 42(1)(a)
of the Uniform Rules of Court or in terms of the common law. The application was
opposed on the basis that the applicant is still i n arrears and continues to be in
default.
Brief Background:
[3] On 21 August 2018, Volkswagen Financial Services South Africa (Pty)Ltd and
the applicant entered into a written alternatively electronic, instalment sale
agreement for the purchase of a V olkswagen Tiguan 2.0TDI Highline 4/MOT DSG in
the amount of R720 410,11(including Vat). The express, alternatively implied,
alternatively tacit terms of the agreement were inter alia as follows:
[3.1] The payment structure of the agreement and the instalme nts payable as
were as follows;
[3.1.1] 71 consecutive monthly instalments of R13 430.90;
[13.1.2] The last payment to be made on 1st September 2024;
[13.1.3] A balloon payment of R174 000,00 payable on 1st September 2024
[3.2] The applicant would pay the purchase amount of the said agreement
together with interest at a variable rate, linked to the prime rate, plus 3.75%
per annum.
[3.3] Whenever Volkswagen is the seller, then the applicant acknowledged
that when it took delivery of the vehicle, it did so on behalf of Volkswagen, and
that the applicant had selected and approved the vehicle and that the vehicle
was fit for the purpose for which the applicant intended using the vehicle.
[3.4] Volkswagen would remain the legal owner and titleholder of the vehicle
until the applicant had paid all the amounts due under the agreement.
[3.5] Ownership in and to the vehicle would pass to the applicant when the
applicant had paid Volkswagen all the amounts due under the instalment sale
agreement in full.
[3.6] That should the applicant fail and /or neglect to comply with its
obligations in terms of the agreement, or fail to pay any amount due to
Volkswagen, or has made misleading statements to Volkswagen before
signing the agreement, or the applicant allows any judgement that has been
taken against it to remain unpaid for more than seven days, then Volkswagen
will have the right without affecting any of its other rights to:
[3.6.1] claim from the applicant the amount which Volkswagen would have
been paid had the applicant fulfilled all its obligations. To this end Volkswagen
will be entitled to cancel the agreement, to take the vehicle back, sell the
vehicle, keep all payments the applicant ha s made and claimed the balance (if
any) from the applicant as damages; alternatively
[3.6.2] claim immediate payment of the full value of the amount that
Volkswagen could claim in terms of the agreement as if it was immediately
due by the applicant.
[3.7] Should Volkswagen not have insisted that the applicant follow any of the
terms of the conditions strictly at a previous stage, the applicant may not
assume that the terms and conditions have been altered. The terms and
conditions set out in the agreement w ill still apply.
[3.8] Volkswagen may without notice to the applicant, transfer or cede any of
the rights and/or obligations and the applicant agreed that he will recognise
the respondent's rights.
[3.9] The applicant agreed further that the physical ad dress that he provided
on the quotation or cost of credit was the address that the applicant had
selected as the address where Volkswagen must send all legal notices.
[3.10] The applicant agreed further to notify Volkswagen in writing by hand or
registered mail of any change to either of the applicants addresses, or the
applicant's email address, telephone or cellular numbers and if the applicant
failed to notify Volkswagen of a change of address the respondent may use
the last known address of the applican t.
[3.11] The applicant agreed, he will be deemed to have received a notice or
letter five business days after the posting of the letter to either the addresses
provided by the applicant.
[4] On 18 July 2017, the respondent and Volkswagen entered into a w ritten
session agreement in terms of which Volkswagen ceded all its rights and obligations
in terms of the agreement, and all rights to its claim, against the applicant to the
respondent.
[5] The applicant breached the terms of the agreement in that the ap plicant failed
to make payments of the monthly instalments. Summons was issued and served on
the residential address personally on the applicant on 9 October 2021 at 10:49 AM.
Judgement was granted on 20 December 2021 by default, wherein the cancellation
of the instalment sale agreement and the return of the motor vehicle to the
respondent was sought and granted.
[6] The applicant complied with the Court Order and the writ of execution and
handed the motor vehicle over on 1 April 2022. According to the ap plicant the
respondent sought payment of the legal cost to consent to the recession of the
judgement. The applicant complied, but to date had not received the written consent,
for the rescission of judgement and the return of the motor vehicle. The applica nt,
therefore sought an order in terms of Rule 42(1)(a) of the uniform rules of court
alternatively in terms of the common law for the rescission of judgment obtained
against the applicant based on the abovementioned refusal by the respondent.
Arguments be fore Court:
[7] It was common cause between the parties that the application was sought
within a reasonable time, for the court to consider the application for the rescission of
judgement. The applicant argued that the applicant did not receive the summon s that
commenced the action nor the letter in terms s129 of the National Credit Act1. The
applicant indicated that there were negotiations between the parties, which provided,
that if the applicant made payment of the arrears, the respondent would consent to
the recession of the judgement, and return the vehicle.
[8] The applicant denied receiving the summons, moreover it was alleged that the
summons was served on a Saturday and on that day, the applicant did not see the
Sheriff or the Deputy Sheriff. The a pplicant argued that there should have been an
affidavit attached, to the return of service, proving that the Sheriff or the Deputy
Sheriff served the documents on him, and this was sufficient ground for the
rescission of judgement. The applicant cited various case law in support of this
argument.
[9] The applicant indicated that the s129 notice in terms of the National Credit Act
was not complied with, as he had not received notification, that there was a
registered document at the Post Office for him to collect.
[10] The applicant indicated that amidst the negotiations between the applicant
and the respondent, there were undertakings made, that if he settled the arrear
amount then the respondents would agree to the recession of judgement and
release the vehicle t o him. According to the applicant he complied but did not receive
such consent for the recession of judgement. The applicant indicated that he was
informed that there were outstanding amounts, which pertained to the storage of the
vehicle, which had no bea ring on the outstanding amount, that was needed to be
paid and therefore as things stood, he was entitled to a recession of judgement by
consent and return of the motor vehicle.
[11] The applicant argued that the judgement was granted in error for had the
court noted that the summons was not served, default judgement would not have
been granted. The fact that the applicant arranged to settle the arrears, legal fees
and costs which was complied with, however the vehicle was not returned and the
consent for t he rescission of judgement was not granted. It was in the interest of
1 Act 34 of 2005
justice that the application be granted on account of the payments made by the
applicant. The storage costs were part of additional claims by the respondent which
was unnecessary sought and was unnecessarily incurred by the respondent. It was
not part of the arrears nor formed part of legal fees claimed, before the rescission
could be granted and as agreed telephonically between the applicant's attorney and
Ms Salter. The applicant alle ged that the respondent negotiated in bad faith, by
hiding the issue of the storage cost, until the last minute, to disadvantage the
applicant, in his negotiations and that the applicant had made out a proper case for
the relief sought, which must be grant ed. The applicant sought costs in respect of the
application.
[12] The respondent argued that in order to obtain a recession under Rule 42(1)(a),
the applicant must show, that the prior order was "erroneously sought" or
"erroneously granted", in the absenc e of any party affected thereby. Reference was
made to various cases illustrating the types of errors that could be remedied when
sought in terms of this rule.
[13] The Respondent indicated that when an affected party invoked the provisions
of Rule 42(1)(a ) the question was whether the party that obtained the order, was
procedurally entitled to it. If so, the order could not be said to have been erroneously
granted, in the absence of the affected party. An applicant or plaintiff would be
procedurally entitl ed to an order, when all affected parties were adequately notified
of the relief, that may be granted in their absence, the relief need not necessarily be
expressly stated, it suffices that the relief granted can be anticipated, in the light of
the nature of the proceedings, the relevant disputed issues and the facts of the
matter. The respondent argued that procedurally the application for default
judgement by the respondent was valid and correctly granted by court. The
respondent sought that the applicati on be dismissed with costs.
The Issues to be adjudicated:
[14] The following issues needed ventilation:
[14.1] Whether the applicant discharged the onus in respect of Rule 42(1)(a)
alternatively the common law.
[14.2] Whether the applicant proved that the default judgement was
erroneously sought and granted.
[14.3] Whether the applicant was able to establish that was a bona fide
reasonable explanation existing for the default, and that the applicant had a
bona fide defence which prima facie had som e prospect of success.
The Legal Principles and Applicability:
[15] An order or judgment may also be rescinded or varied under Rule 42(1)(a)2,
which reads:
"The court may, in addition to any other powers it may have, mero motu or
upon the application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
[16] To succeed in a rescission under Rule 42(1)(a), an applicant must show that
the judgment was "err oneously sought or erroneously granted in the absence of any
party affected thereby". An order will be erroneously granted "if there existed at the
time of its issue a fact which the court was unaware of, which would have precluded
the granting of the judgment and which would have induced the court, if aware of it,
not to grant the judgment."3
[17] The applicant relies on Rule 42(1) (a) based on the allegation that the
applicant was not ser ved with the summons and as such judgment by default, should
not have been granted. In the case of Matseke v Maine4 the court noted,
2 Rule 42 of the Uniform Rules of Court
3 See Rossitter & Others v Nedbank Ltd [2015] ZASCA 196 at para 15.
4 (M198/2020) [2024] ZANWHC 13 (26 January 2024)
"It is trite that an applicant who places reliance on rule 42 (1) (a) for rescission,
must show and prove firstly that the order sought to be rescinded, was
granted in their absence, and secondly, that same was erroneously sought or
granted. Once the two requirements are met, that is not the end of the enquiry.
The court will then be entitled to exercise its discretion, and in doing so take
into account considerations of fairness and justice. In other words, therefore,
a court is not compelled to rescind an order or judgment, but has a discretion,
which discretion must be exercised judicially."
[18] In the case of Zuma v Secr etary of Judicial Commission of Injury into
Allegations of State Capture, Corruption and Fraud in the Public Sector
Including Organs of State and Others5, the Constitutional Court summarised the
position concerning whether the applicant had met and satisfi ed the requirements for
rescission of judgment either in terms of rule 42 (1) (a) or the common law as follows:
"It should be pointed out that once an applicant has met the requirements for
rescission, a court is merely endowed with a discretion to rescind its order .
The precise wording of rule 42, after all, postulates that the court " may", not
"must ", rescin d or vary its order - the rule is merely an "empowering section
and does not compel the court" to set aside or rescind anything. This
discretion must be exercised judicially." It is against this backdrop that this
application is considered.
[19] The appli cant highlighted that the s129 notice was not received in support for
the court to find that the judgment was granted in error and as such the rescission of
judgment was merited. Regard was had to the provisions of s129(1)(a) of the
National Credit Act6 which permits a credit provider to draw a consumer's default to
their attention in writing and "propose that the consumer refer the credit agreement
to a debt counsellor, alternative dispute resolution agent, consumer court or ombud
with jurisdiction, with t he intent that the parties resolve any dispute under the
5 2021 (11) BCLR 1263 (CC )
6 Act 34 of 2005
agreement or develop and agree on a plan to bring the payments under the
agreement up to date". Under s129(1)(b)(i), a credit provider "may not commence
any legal proceedings to enforce the agreement before (i) first providing notice to the
consumer, as contemplated in paragraph (a)".
[20] Section 130(4)(b) gives direction to a credit provider who commences legal
proceedings without complying with s 129 by noting the following, "the court must - (i)
adjourn the matter before it; and (ii) make an appropriate order setting out the steps
the credit provider must complete before the matter may be resumed". In the
absence of a s129 notice, judgment cannot be granted. The matter will be postponed,
and the credit provider will be required to take the relevant steps in terms of s129.
[21] The Constitutional Court ruled that the purpose of s129 is threefold:
(a) It brings to the attention of the consumer the default status of his/her
credit agreement.
(b) It provides the consumer with an opportunity to rectify the default status
of the credit agreement to avoid legal action being instituted on the credit
agreement or to regain possession of the asset subject to the credit
agreement.
(c) It is the only gateway for a credit provider to be able to institute legal
action against a consumer who is in default under a credit agreement. 7
[22] The applicant made a bold av erment that the s129 notice was not brought to
the applicant's attention. In response it was argued by the respondent that the s129
notice was duly sent by registered post, to the applicants chosen domicilium citandi
et executandi, postal address and email address. At the time judgement was granted
by default, the court was satisfied that the necessary track and trace record of the
notice to the applicant, indicated that the GA -KGAPANE Post Office issued a "first
7 Amardien and Others v Registrar of Deed s and Others [2018] ZACC 47; 2019 (2)
BCLR 193 (CC); 2019 (3) SA 341 (CC) at para 56.
notification to the recipient". Moreover, th e s129 notice was sent also by email to the
applicant's email address. The respondent therefore complied with the provisions of
s129 of the National Credit Act and the court was satisfied of there being compliance
to grant judgment by default. The applicant failed to rebut the respondent's
averments with specific reference to same. The applicant failed to grapple with the
allegat ion that the domicilium address and email address were as contained in the
sale agreement. The main contention by the applicant was in respect of the
proceedings, following the negotiations with the respondent, concerning the consent
to the rescission of j udgment.
[23] The applicant denied receiving the summons, based on the allegation that
same was served on a Saturday and he did not see the Sheriff or his Deputy. The
return of service reflects that the applicant was personally served with the summons
on the date in question. Section 36(2) of the Superior Courts Act8 provides that " a
return of service constitutes prima facie proof of the content thereof " Regard was had
to Rule 4 of the Uniform Rules of Court, when considering the applicants allegation
conce rning service of the Summons.
Rule 4(1) (a) "Service of any process of the court directed to the sheriff and subject
to the provisions of paragraph (aA) any document initiating application proceedings
shall be effected by the sheriff in one or other of the following manners - (i) by
delivering a copy thereof to the said person personally: ;
Rule 4(1)(b) Service shall be effected as near as possible between the hours of 7:00
and 19:00.
Rule 4(1)(c) No service of any civil summons, order or notice and no pro ceedings or
act required in any civil action, except the issue or execution of a warrant of arrest,
shall be validly effected on a Sunday unless the court or a judge otherwise directs.
Rule 4(6) Service shall be proved in one of the foll owing manners - (a) Where service
has been effected by the sheriff; by the return of service of such sheriff;"
[24] The return of service indicates that the Summons was personally served on
the applicant on 9th October 2021, a Saturday at 10h49 at the phys ical address of
8 Act 10 of 2013
the applicant, being house no 2 […] GA-KGAPANE. This was sufficient proof for the
Court to find that the Summons was personally served on the Defendant and with all
the relevant documents attached could grant judgment by default as per the c ourt
order.
[25] The applicant in response makes issue that the Summons was served on a
Saturday and denies receiving same and seeks further proof by way of affidavit from
the Sheriff, which according to the applicant was supposed to be attached to prove
that the said Summons was served. As highlighted above this was not necessary in
terms of the Uniform Rules of Court and the return of service was prima facie proof
of the applicant, having received the Summons concerning this matter. There was no
error on the part of the court in granting judgment as the application with the
accompanying documents sufficed for the court to grant the aforesaid order.
[26] For rescission of judgement to be granted in terms of the common law the
applicant must show sufficient cause by providing a reasonable explanation for the
default. The applicant must indicate that the application is made bona fide and that
there is a bona fide defence which prima facie had some prospect of success. This
can be described as the "good cause" principle which has been applied in relation to
applications for the recession of judgement in terms of common law.
[27] In Zuma (supra) the Constitutional Court emphasized the onus rests upon an
applicant seeking the recission to satisfy the court as follows,
"Requirements for rescission of a default judgment are twofold. First, applicant
must furnish a reasonable and satisfactory explanation for its default . Second,
it must show that on the merits it has a bona fide defence which prima facie
carries some prospects of success . Proof of these requirements is taken as
showing that there is sufficient cause for an order to be rescinded. A failure to
meet one of them may result in the refusal of the request to rescission."
[28] The applicant bemoans the circumstances flowing from the vehicle having
been attached by the Sheriff as per the court order and the writ of execution on the
1st April 2022 . The applicant conceded that he had defaulted in the monthly
obligations in respect of the debt. He disputed the amount and highlighted that he
was up to date with his payments and that the agreement still subsisted and he was
committed to proceeding with servicing the instalments. It was not disputed that at
the time default judgement was sought and granted, the applicant was in arrears in
respect of payment in the amount of R 81 234,34 as per the certificate of balance.
[29] On the applicant's version payment of R52 500,00 was made in respect of the
amount due, as settlement of the arrears, for the purpose of the recession of
judgement, which was to be consented to by the respondent, and for the vehicle to
be returned to the applicant. On the applicant 's own version, the amount paid in May
2022 was insufficient in respect of the arrears owing, at the time default judgement
was granted, which was utterly inadequate to settle the arrears nearly six months
later. Moreover, prior to payment and at the tim e of negotiations as per the statement
of account the amount in arrears was R152 480,34. The certificate of balance on the
27th July 2022 was R107 322,84. The agreement between the parties, provided that
this was prima facie proof of the applicant's indebte dness.
[30] The applicant further relied upon a document FA8 as proof in support of the
allegation of the agreement concerning the outstanding balance and consent to
rescission of judgement. This document is essentially an email sent by the applicant
containing the above -mentioned averments, which does not strengthen the
applicant's case. In respect of the application itself for the rescission of judgement,
the applicant has placed no bona fide defence to the claim, to warrant the court to
find that there was "good cause" shown for the rescission of judgement.
[31] Both the s129 and the Summons were duly served on the applicant in
accordance with the provisions of the National Credit Act9 and the Uniform Rules of
Court. Outside of the bald allegations of n ot receiving the aforementioned documents
the applicant has placed no evidence before this court in rebuttal of same. As
highlighted above, the payments made by the applicant was insufficient to expunge
the arrears and legal costs. The applicant has failed to put forward evidence in
rebuttal of the certificate of balance which stands as prima facie proof of the
9 See 6 above
applicant's indebtedness to the respondent. In light of the aforesaid with specific
regard to the discretion afforded the court when considering an application for
rescission of judgement the applicant has failed to show good cause, a reasonable
explanation for his default, that he has a bona fide defence to the respondent's claim
which prima facie has some prospect of success and that the applicant is bona fide
and seeking the application for the recession of the judgement obtained by default
against him. It is for the above -mentioned reasons that the application is dismissed.
Costs:
[32] The Counsel appearing for the applicant sought costs in respect of the
application on a party and party scale including cost of Counsel on scale B. The
respondent's Counsel argued that cost be awarded also on a party and party scale
including cost of Counsel on scale B. This court found no reason to deviate from the
general rule that the cost follows the successful party. The respondent was
successful and should be awarded cost as prayed.
Ruling:
[33] It is for the above reasons after considering a ll the evidentiary material, the
applicable legal principles, as well as the relevant case law, the applicant has failed
to prove, all the elements and the requirements, for the rescission of judgment, either
in terms of Rule 42 (1) (a) or at common law. T he application is therefore dismissed.
Order:
[34] In the result the following order is made: -
[34.1] The Application for Rescission of Judgment is Dismissed
[34.2] The Applicant is ordered to pay the taxed costs of the application on a
party and part y scale including cost of Council on scale B.
PILLAY KL
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
FOR THE APPLICANT : Advocate R Baloyi
INSTRUCTED BY : Kgatla Attorneys
FOR THE RESPONDENTS : Adv S Hanekom
INSTRUCTED BY : Fabricius Attorneys
DATE OF HEARING : 11 November 2024
DATE OF JUDGEMENT : 19 March 2025